Rush v. Johnson

Mr. Justice Horton, after making the above statement, DELIVERED THE OPINION OF THE COURT. There is no showing of proper diligence on the part of appellant. The case had been at issue more than a year, and was reached for trial in due course upon the call of the trial calendar. The fact that the member of the law firm who took charge of this case upon the dissolution of his firm did not know that appellant was a defendant in the case, and therefore was not present at the trial, shows no sufficient reason for setting aside the verdict and judgment. If appellant was not represented at the argument of motion, January 30, 1897, to set aside judgment, that could have been very easily shown by his then attorney, whose affidavit was subsequently filed. The law presumes that the order by the Superior Court entered January 30,1897, overruling the motion to set aside the judgment, was within its jurisdiction and was properly entered at the time it was entered, unless the contrary is shown. The duty of showing it, if relied upon, is upon appellant. He has not shown it. It will therefore be assumed that he was represented in court January 30th, when the motion to set aside the judgment was argued. A party who appears and argues a motion will not be permitted afterward to claim that the court had no right to rule upon the motion thus argued. When the appellant appeared at the January term and argued the motion to vacate the judgment, as we must assume he did, he waived any objection he might otherwise have had to the decision of that motion at that term of the court, notwithstanding the order previously entered continuing the motion to the February term. Anderson v. Moore, 145 Ill. 61; Munster v. Doyle, 50 Ill. App. 672. The judgment of the Superior Court is affirmed.